Top Election Law Expert Doesn’t Think What’s in Mueller Indictment is All Actually Illegal

On Friday, Robert Mueller‘s team announced a massive indictment against 13 Russian operatives accused of violating election law, fraud and failing to register as foreign agents for their alleged scheme to infiltrate social media platforms to sway the election against (for the most part) Hillary Clinton.

A large crux of the indictment centers around alleged violations of the Federal Election Campaign Act (FECA). The feds say that the Russian operatives, while concealing their identities, purchased and posted advertisements on social media to further their scheme of influencing the election. FECA prevents foreign nationals from making any contributions, expenditures in connection with any federal, state or location election in the United States.

But, as well-known election law expert Rick Hasen points out, FECA is not limitless, and some of the advertisements mentioned in the indictment might not actually be illegal.

“Some of the ads are clearly covered e.g., “Vote Trump”,” Hasen explained in an email exchange with Law&Crime. “But a number would not be covered, or at least there is an argument that the statute needs to be read that way to avoid First Amendment problems.”

In other words, some of this alleged Russian election activity, thanks to the way federal campaign finance law is written and thanks to how Supreme Court has interpreted first amendment, may not be illegal under current law. That's even if the intention was to influence election

In other words, the First Amendment protects free speech, so just because the Russian ads might seem like they endorse a candidate, they aren’t necessarily endorsing a candidate, so they aren’t necessarily illegal. For example, Hasen cites an ad which reads, “Hillary is a Satan and her crimes and lives have proved just how evil they are.” The ad was bought about a month before the election, and does not (at least from what we can tell) expressly advocate for one candidate over another.

Federal law bars foreign nationals, including foreign governments, from making expenditures, independent expenditures, and electioneering communications in connection with a “Federal, State or local election.” However, it is at best uncertain whether independent online ads that do not expressly advocate the election or defeat of candidates are covered by the foreign expenditure ban. For example, a Russian ad promoting a Black Lives Matter rally but not mentioning or showing a candidate for office likely would not be considered an election ad under current law, which does not cover pure issue advocacy even if intended to influence election outcomes. These advertisements also would not be covered under proposed federal legislation, the “Honest Ads Act,” which would extend rules barring foreign spending on television or radio “electioneering communications” to communications via digital outlets like Facebook. Electioneering communications must feature the name or likeness of a candidate for office to be covered.

You can bet–if this ever makes it to court– defense attorneys for the Russian operatives will cling on to these First Amendment issues to fight the indictment.